The Wages of Sin

June 4, 2011

Just how screwed is John Edwards? On Friday, the Justice Department indicted the former senator on charges of conspiracy, perjury, and campaign-finance-law violations. No laughing matter. But to hear Edwards’s lawyers tell it, the government’s case is absurd. Here’s Greg Craig: “The government’s theory is wrong on the facts and wrong on the law. It is novel and untested. There is no civil or criminal precedent for such a prosecution.” Is Craig right? Is the Edwards indictment really so ridiculous?

The short answer, say campaign-finance experts, is not necessarily. If Edwards really did do what the government is alleging—taking in big sums of money for his campaign without reporting it to the FEC—that’s a serious crime. “I don’t think the government’s bringing a frivolous claim,” says Rick Hasen, a law professor at University of California Irvine. But, Hasen notes, the case could be tricky to prove—partly because the relevant law is fairly vague, and partly because the case will hinge on Edwards’s state of mind, which in turn will depend on a few not-so-reliable witnesses.

The broader facts of the case are straightforward, as per the 19-page indictment. Back in 2008, Edwards was vying to be the Democratic presidential nominee. He just had one little problem: Beginning in February of 2006, he had been carrying on an extramarital affair with Rielle Hunter, who had been shooting videos for the Edwards campaign, and who would later become pregnant. Fast-forward to June 2007: A key Edwards supporter, the multimillionaire heiress Rachel “Bunny” Mellon, began sending money, via a friend, to an Edwards staffer, Andrew Young. Young, in turn, used the money to pay for Hunter’s rent, furniture, child care, and other expenses. (Later on, in December, Edwards reportedly asked Young to claim that he was the father of Hunter’s child, telling Young that “his efforts to win the presidency … depended on it.”) All told, Mellon wrote $725,000 in checks that ended up paying for private jets and hotel rooms for Hunter.

The big question here is whether that money actually assisted Edwards’s campaign. The indictment argues that Edwards’s presidential bid hinged on his “public image as a devoted family man”—and, hence, any money that was being used to keep Hunter out of the limelight counts as a donation to the campaign. And, since Rachel Mellon had already contributed the maximum allowable amount of $2,300 to Edwards’s primary campaign—and since her gifts to Hunter weren’t being reported—that’s a clear campaign-finance violation.

But much depends on whether the government can prove, beyond a reasonable doubt, that that’s what Edwards was intending to do. If, on the other hand, he was merely using the money to conceal the affair from his wife, well, that might be morally deplorable, but it’s not illegal. “If John Edwards’s best friend bought him a fancy car because he liked it, that wouldn’t have to be reported to the FEC, either,” says Hasen, by way of analogy.

So how does the government prove that Edwards willfully violated the law? He’d certainly have to have known about the payments, for one. The indictment notes that around May of 2007, Edwards and Young started discussing individuals who could provide money to support Hunter. Mellon turned out to be more than willing: That same month, she had sent Young a note saying she was furious at the press for mocking Edwards’s $400 haircut, and asked Young to send all future stylist bills her way, saying, “It is a way to help our friend without government restrictions.” Young allegedly read Edwards the note.

It may be even trickier, however, to show that these gifts were meant to help Edwards’s campaign, and not just hide the affair from his wife. One catch is that past finance-law violations usually involve more direct campaign assistance—say, shady money that gets laundered to pay for mailers or ads. This doesn’t quite fall into that category. And, conversely, politicians spend money on all sorts of things to bolster their personal reputation without reporting it to the FEC (as the indictment notes, campaign finance law is fine with money that would have been spent “irrespective of the candidacy”).

Searching for precedents, the government is citing a 2000 FEC opinion, in which Philip Harvey, the founder of a sex-toy company, wanted to give $10,000 to an unknown candidate “to express my deep appreciation to this individual for foregoing opportunities in the private sector.” Even if the gift wasn’t intended to help the campaign, the FEC still ruled that it was improper, because Harvey didn’t have a habit of giving gifts to the candidate prior to this case. Other legal experts, however, have chimed in to say that one FEC advisory opinion hardly counts as a solid precedent. And, on the pro-Edwards side of the ledger, there’s precedent, too: Back in 2002, a drug lobbyist gave Jim Moran a $25,000 loan that was signed over his divorce lawyer. The FEC ruled that this wasn’t a campaign violation. Murky territory. No wonder the government is having a hard time getting former FEC commissioners to testify on its behalf.

Edwards’s lawyers are still working hard to get the case dismissed before it goes to trial. It’s a smart move. Legal observers note that Edwards has become such an unlikeable character that his chances before a jury in a criminal court might not be so stellar. If that happens, then precedent or no, ridiculous argument or not, Edwards really might be screwed.